Top Of The News: Microsoft's Scapegoat

For
Microsoft
, Judge
Thomas Penfield
Jackson
Thomas Penfield Jackson
's fall from judicial grace is the gift that keeps on giving--or so it hopes.

A month ago, the software maker was crowing about how it won the appeal of the antitrust ruling against it. Yesterday, with its post-trial conduct undergoing increasing scrutiny, Microsoft
petitioned the United States Supreme Court to review the case and to throw the District Court ruling out entirely because of Jackson's misconduct. Microsoft also wants all further proceedings to halt until the Supreme Court can rule.

What Jackson did, no one defends. He gave a series of interviews to journalists while the trial was still ongoing and made numerous impertinent remarks about Microsoft and its executives. In his talks with reporters, Judge Jackson spoke extensively about his views of the case. He compared the giant software firm to drug dealers, said
Bill
Gates
Bill Gates
should have finished school, and said his testimony was incredible.

The D.C. Circuit Court of Appeals said Jackson's conduct was bad--real bad--but not bad enough to throw out all of his findings of fact, nearly all of which were supported by the trial record. The appeals court did, however, cite the judge's misconduct as part of the reason for reversing his order that Microsoft be broken in two.

Now Microsoft says the Court of Appeals, whose seven judges ruled unanimously, didn't go far enough. The entire trial was tainted and all of Jackson's legal and factual findings must be thrown out, Microsoft argues in its appeal to the Supreme Court. Meanwhile, it is asking the Court of Appeals to stay all proceedings, which would stop a new district court judge from taking over the case.

Without a stay, a new judge was supposed to be selected shortly to implement the Court of Appeals ruling and resolve the remaining issues in the case, including the appropriate remedy.

Microsoft says its concern is for "the integrity of the judicial process." But its obvious motive is delay--as it has been throughout the case. Microsoft is about to issue the latest version of its operating system, Windows XP. In that product, Microsoft seeks to add several new features to Windows that its critics say are designed to conquer the market for music delivery systems over the Internet and to link its financial, shopping and entertainment services more closely to the operating system.

Federal and state officials have been examining Windows XP to decide whether to try to block it from being sold or to seek other remedies. Sen.
Charles
Schumer
Charles Schumer
, D- N.Y., has called on the Justice Department to seek an injunction halting the release of Windows XP and his Senate committee is slated to hold hearings.

Last week, the Court of Appeals rejected Microsoft's request that it reconsider a technical part of its ruling. In yesterday's filing, it raised a variety of antitrust questions--but those are for later. For now, it is focusing not on its own conduct, but on an easier target: Judge Jackson.

The appeal is a longshot since the Supreme Court almost always restricts itself to heady Constitutional matters. Issues like the behavior of a trial judge--even in momentous cases-- rarely make it onto its docket. But Microsoft's lawyers argue the court must resolve a narrow question of statutory construction concerning when a trial judge must be disqualified.

Even if it doesn't prevail on this issue, a temporary stay of further district court proceedings would give Microsoft the breathing room it needs to release Windows XP without judicial restrictions. If the Court of Appeals denies the request for a stay, Microsoft will still be able to appeal to the Supreme Court after the new district court judge rules.

Microsoft's latest maneuver throws the case procedure into doubt. This doubt serves the software giant well since, because of the Court of Appeals ruling, there is no outstanding court order requiring it do--or not do--anything. If the case grinds to a halt, the legal system may prove too inept to stop conduct that has so far been ruled illegal.

Earlier in the case, Microsoft sought to avoid the involvement of the Supreme Court. The Justice Department asked the court to hear the appeal of Judge Jackson's ruling directly, a motion Microsoft opposed. The Supreme Court decided not to hear the case then. Now Microsoft wants to give it another chance--with more chances to come.

Gamesmanship of this kind is standard in the American legal system, and there is no reason Microsoft and its army of lawyers should not seek every advantage. But when the games involve the world's second-most valuable corporation, they seem sillier than ever.